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F I L E D

United States Court of Appeals


Tenth Circuit

PUBLISH

DEC 22 1997

UNITED STATES COURT OF APPEALS


TENTH CIRCUIT

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,


Plaintiff-Appellant,
v.
LEON, D.M.,

No. 97-2000

Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-96-301-BB)
Louis E. Valencia, Assistant United States Attorney; John J. Kelly, United States
Attorney, with him on the brief, Albuquerque, New Mexico, for Plaintiff-Appellant.
Jerry A. Walz; Walz and Associates, Albuquerque, New Mexico, for Defendant-Appellee.
Before TACHA, HENRY, and LUCERO, Circuit Judges.
HENRY, Circuit Judge.

The United States brings this interlocutory appeal challenging the denial of its
motion to transfer the defendant-appellee Leon D.M. to adult status. Applying the
collateral order doctrine established in Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541 (1949), we first conclude that we have jurisdiction to consider this appeal. On the
merits, we hold that the district court did not abuse its discretion in denying the
governments motion to transfer and therefore affirm its decision.

I. BACKGROUND
In May 1996, the United States Attorney for the district of New Mexico filed an
information alleging that, on November 16, 1995, Leon D.M. killed Johnny D.C., Jr., a
two- year, eleven-month-old boy, within the boundaries of the San Juan Indian
Reservation. At the time of the alleged offense, Leon was seventeen years, nine months
old. After filing the information, the government moved to proceed against Leon as an
adult pursuant to 18 U.S.C. 5032.
The evidence introduced at the hearing on the governments motion indicated that
Leon was a poor student who dropped out of high school at fifteen. In the summer of
1993, he met Charmain Chavez, a twenty-five-year-old woman with three children from a
previous marriage: an eight-year-old boy, a five-year-old girl, and Johnny D.C., Jr., who
was born on December 29, 1992. Shortly after he met her, Leon moved in with Ms.
Chavez and her children. In September 1995, when Leon was seventeen, he and Ms.
Chavez had a son.
Ms. Chavez and Leon first lived with his mother in Chimayo, New Mexico. They
later moved to his grandparents house in Truchas, New Mexico and then to Ms. Chavezs
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house on the San Juan Pueblo Reservation. When they lived in Chimayo, Leon worked at
a nursing home as a cook. After the move to the reservation, he stayed home to care for
the children while Ms. Chavez worked at the Eight Northern Indian Pueblos Council.
Ms. Chavez, Leons mother, and a high school friend all testified at the evidentiary
hearing that Leon was never violent or abusive with Ms. Chavezs three children or with
his infant son. According to his mother, Leon took good care of Johnny, getting up in the
middle of the night to feed and change him. All of these witnesses characterized Leon as
of average intelligence and noted that he enjoyed working on cars. Ms. Chavez said that
he was mature.
On November 16, 1995, Leon called Ms. Chavez at work and told her that she
should come home because Johnny had fallen off his tricycle and needed to be taken to
the hospital. When she arrived at home, she found Johnny in the bedroom. His clothes
were wet and he was unresponsive. Ms. Chavez noticed a large bump on his head. Leon
told Ms. Chavez that after Johnny had fallen down, he had tried to administer cardiopulmonary resuscitation and, when that did not work, had placed Johnny in the shower in
order to revive him. Ms. Chavez and Leon took Johnny to the hospital, where he died.
At the evidentiary hearing, the government presented testimony from Dr. Eugene
Zumwalt, a forensic pathologist who served as the Chief Medical Investigator for the
State of New Mexico and who supervised Johnnys autopsy. Dr. Zumwalt testified that
the autopsy revealed multiple external bruises on the childs head, neck, back, chest,
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abdomen, buttocks, right knee, shins, and feet. Further examination revealed extensive
internal bleeding in the brain, a complex skull fracture, a hemorrhage in the left eye,
bruises around the optic nerves, a laceration of the frenulum, a broken vertebrae, and a
tear in the mesentery (the tissue that attaches the bowel to the back of the abdomen).
According to Dr. Zumwalt, Johnnys injuries were inconsistent with Leons account of a
single fall from a tricycle. He concluded that Johnny died from multiple blunt force
injuries that were probably inflicted at the same time.
On cross-examination, Dr. Zumwalt acknowledged that the injuries were
consistent with single episode fatal abuse, which means that a child who is fatally
abused . . . . [m]ay have multiple injuries , but all the injuries are consistent with having
occurred at or about the same time with one episode of injury. Rec. vol. II, at 111 (Tr.
of Evidentiary Hrg dated Oct. 9, 1996). He added this kind of abuse could be
committed by individuals lacking sufficient parenting skills who are overwhelmed by
their family responsibilities. Id. at 111-12.
The government also introduced evidence regarding prior acts of abuse. An FBI
agent testified that Ms. Chavezs daughter had told him that Leon would occasionally
force-feed Johnny. Additionally, two neighbors informed law enforcement agents that
that they had observed Leon violently shaking the boy. These witnesses stated that they
had told Leon to stop and that he had complied.

Johnnys father then testified that he suspected Leon of abusing his son, stating
that on several occasions he had noticed bruises on his sons chin. When Johnny, Jr. was
hospitalized for a viral infection in February 1995, he said, he reported these observations
to medical personnel, but they told him that the bruises were caused by the infection.
From February 1995 until his sons death in November, Johnnys father added, he had
discovered no additional bruises. He also testified that Leon appeared to him to be a
violent person, threatening him and his family several times and once actually throwing a
punch at him.
Finally, the government offered evidence regarding the lack of treatment programs
for individuals like Leon. Dr. David Miller, a forensic psychologist and Acting Deputy
Superintendent of the New Mexico Boys School, testified there were no programs or
juvenile facilities available within the State of New Mexico for violent offenders of
Leons age. Dr. Miller listed three reasons for the lack of such programs: the violent
nature of the crime, Leons age, and overcrowding at the New Mexico facilities.
After hearing all the evidence, the district court took the case under advisement.
The court requested both the government and counsel for Leon to present additional
information regarding out-of-state facilities that accepted violent juvenile offenders and
that had educational and treatment programs. Both parties complied, and their
submissions revealed several out-of-state facilities accepting individuals over eighteen
who had committed violent crimes before their eighteenth birthday and providing
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education and treatment programs for them. See Rec. vol. I, docs. 44, 45. After the
hearing, Leons counsel also submitted the results of a Wechsler Adult Intelligence Scale,
administered to him in October 1996, that estimated Leons mental age at 14.4 years. See
id. doc. 47.
In November 1996, after the hearing and after reviewing the information
regarding out-of-state programs, the district court entered an order denying the
governments motion to transfer Leon to adult status. See id. doc. 48. The court
considered the six factors listed in 18 U.S.C. 5032 as relevant to the decision regarding
transfer: (1) Leons age and social background; (2) the nature of the alleged offense; (3)
his prior delinquency record; (4) his present intellectual development and psychological
maturity; (5) the nature of past treatment efforts and his response to those efforts; and (6)
the availability of programs designed to treat his behavioral problems.
The court found two factors favoring a transfer to adult status. First, the court
noted that Leon was almost eighteen at the time of the alleged offense, and this fact
favored treating him as an adult. Second, the court concluded that the heinous nature of
the alleged offense also favored transfer. See id. at 3-4.
However, the court also identified several factors supporting Leons contention
that he should be treated as a juvenile. First, Leons social background indicated that he
was an immature teenager whose relationship with Ms. Chavez and her children had
thrust him into an adult role that he did not understand and for which he was inadequately
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prepared. Second, even with regard to the nature of the offense, there were some
characteristics that supported juvenile adjudication. The court cited Dr. Zumwalts
testimony that under the pressure of caring for four younger children, an immature
teenager could easily lose his temper and react with violence. Id. at 4.
The court also discussed Leons prior delinquency record. It observed that he had
been convicted in the San Juan Tribal Court of several offenses (malicious mischief,
disorderly conduct, and a minor drug violation) and had been ordered to pay a $100.00
fine for each charge. He was also cited for contempt when he failed to pay these fines.
There was also testimony from several witnesses at the evidentiary hearing that Leon used
marijuana. However, the court characterized Leons record as relatively insignificant.
Id. at 5. As to Leons intellectual development and psychological maturity, the court
concluded that he was a slow learner with limited intellectual ability and that this factor
also weighed against transfer to adult status.
Finally, the court considered the prospects of effectively treating Leon. It noted
that he had received no prior treatment whatsoever and concluded that this factor favored
retention of juvenile status. The court then cited the supplemental evidence provided by
both parties indicating that several out-of-state facilities could provide education and
treatment for Leon.
In light of all these factors, the district court concluded that Leon should be
retained in juvenile status:
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Defendant was an immature, undereducated teenager who left


home at fifteen and found himself in a very demanding family
situation. He had not previously demonstrated any violent or
dangerous traits. To the contrary, most of the testimony was
that Defendant generally attempted to avoid confrontation.
Thus, there appears little chance that Defendant will be a
danger to society and there appears to be good chance he can
be rehabilitated to become a useful member of society. The
congressional history of Section 5032 indicates that
Defendant should retain juvenile status unless the Court finds
there is no reasonable prospect of rehabilitation before his
twenty-first birthday. In this case, the Court finds Leon D.M.
has a reasonable prospect for rehabilitation before his twentyfirst birthday.
Id. at 7-8 (citation omitted).
The government then moved for reconsideration, arguing that it had been afforded
no opportunity to respond to the results of the intelligence test and that the court should
order Leon to submit to a full psychological evaluation. See Rec. vol. I, doc 51. The
district court denied the governments request, reasoning that the intelligence test was
far from dispositive. See Rec vol. I, doc. 54 at 2. The court added that [u]pon a
proper showing, the Court could yet be persuaded to reopen the record to accept any such
evidence available to the parties. Id. n.1.

II. DISCUSSION
On appeal, the government contends that the district court erred in denying its
motion to transfer Leon to adult status. Leon first responds that we lack jurisdiction over
this appeal because the district courts decision constitutes an interlocutory order. He also
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argues that the district courts decision to maintain his juvenile status is supported by the
record. We begin with the jurisdictional question.

A. Jurisdiction
Because it does not finally resolve all of the issues in the case, the district courts
decision denying the governments motion to transfer constitutes an interlocutory order.
See Harolds Stores, Inc. v. Dillard Dept Stores, Inc., 82 F.3d 1533, 1541-42 (10th Cir.)
(discussing the principle that interlocutory orders are usually not immediately appealable),
cert. denied, 117 S. Ct. 297 (1996). Generally, such orders may not be reviewed until the
district court enters a final judgment that conclusively resolves all of the issues in the
case. See id. However, in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S.
541 (1949), the Supreme Court established an an exception to that general rule, holding
that in interlocutory orders that possess the following characteristics may be appealed
before the entry of final judgment: (1) the order must conclusively determine the
disputed question[;] (2) it must resolve an important issue completely separate from
the merits of the action[;] and (3) it must be effectively unreviewable on appeal from
a final judgment. Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989)
(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). In the instant case,
the government contends that the district courts order denying its motion to transfer
meets these requirements and that, as a result, this court now has jurisdiction to review it.
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In United States v. Angelo D., 88 F.3d 856, 857-59 (10th Cir. 1996), we applied
the Cohen collateral order doctrine to a juveniles appeal of a district court order granting
the governments motion to transfer to adult status. We noted that every circuit that has
addressed the question had concluded that an order transferring a juvenile to adult status
is immediately appealable under the collateral order doctrine. See id. at 858 n.1 (citing
United States v. J.J.K., 76 F.3d 870, 871-72 (7th Cir. 1996); United States v. Doe, 49 F.3d
859, 865 (2d Cir. 1995); United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir.
1994); United States v. A.R., 38 F.2d 699, 701 (3d Cir. 1994); United States v. Bilbo, 19
F.3d 912, 914-15 (5th Cir. 1994); United States v. Gerald N., 900 F.2d 189, 190 (9th Cir.
1990); In re Sealed Case, 893 F.2d 363, 368 (D.C. Cir. 1990); United States v. Smith, 851
F.2d 706, 708 (4th Cir. 1988); United States v. A.W.J., 804 F.2d 492, 492-93 (8th Cir.
1986); United States v. C.G., 736 F.2d 1474, 1476-77 (11th Cir. 1984)). We agreed with
these circuits and held that the district courts order satisfied the Cohen requirements such
that we had jurisdiction over the appeal.
We reasoned that the first two Cohen factors were clearly present--[t]he transfer
order conclusively determines whether the defendant is to be tried as an adult or a
juvenile and resolves an important issue separate from whether the juvenile is innocent or
guilty of the current charges. Angelo D., 88 F.3d at 858. We recognized that the third
Cohen factor-- whether the transfer order would be effectively unreviewable from a final
judgment--raised a closer question. Id. However, noting that the purpose of the
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Federal Juvenile Delinquency Act is to remove juveniles from the ordinary criminal
process in order to avoid the stigma of a prior criminal conviction and to encourage
treatment and rehabilitation, id. (quoting United States v. Brian N., 900 F.2d 218, 220
(10th Cir. 1990)), we concluded that a juvenile would lose the legal and practical benefits
afforded by the Act if he or she were forced to wait until after a final judgment to appeal
an order of transfer to adult status. See id. (citing Doe, 49 F.3d at 865).
In arguing that we lack jurisdiction to consider the governments appeal in the
instant case, Leon contends that Angelo D is distinguishable because that case involved
an appeal by a juvenile of a district court decision granting a motion to transfer to adult
status rather than an appeal by the government of decision denying a motion to transfer.
Leon contends that when the government seeks to appeal the denial of its motion to
transfer, the third Cohen element is not satisfied. According to Leon, there is no right that
will be irretrievably lost if the government is required to wait until the entry of a final
judgment to file an appeal.
Although the Tenth Circuit has not yet reached the question of whether the
government may immediately appeal the denial of a motion to transfer a juvenile to adult
status under the Cohen collateral order doctrine, the Second and Ninth Circuits have both
concluded that the government may pursue such an appeal. See United States v. Doe, 94
F.3d 532, 535 (9th Cir. 1996); United States v. Juvenile Male No. 1, 47 F.3d 68, 70-71
(2d Cir. 1995). In Doe, the Ninth Circuit concluded that the first two Cohen elements
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were clearly satisfied. See Doe, 94 F.3d at 535 (The district courts order denying the
governments motion conclusively determines the disputed question, that is, whether the
defendant will be tried as an adult, and this is is completely separate from the merits of
defendants guilt or innocence.). As to the third Cohen element, the Ninth Circuit noted
that if the government were forced to wait until the conclusion of the juvenile
adjudication to appeal the district courts denial of its motion to transfer, the
governments right to try [the] defendant as an adult would be forever barred by the
Double Jeopardy Clause. Id. at 535 (citing Breed v. Jones, 421 U.S. 519, 541 (1975));
see also Juvenile Male No. 1, 47 F.3d at 70-71 (concluding that the court of appeals has
jurisdiction to consider the governments appeal of an interlocutory order denying its
motion to transfer to adult status); United States v. David H., 29 F.3d 489, 491 n.2 (9th
Cir. 1994) (per curiam) (same).
We are persuaded by the reasoning of these decisions. As we have previously
observed, the purpose of the federal statutes concerning juveniles is to remove juveniles
from the ordinary criminal process in order to avoid the stigma of a prior criminal
conviction and to encourage treatment and rehabilitation. Brian N., 900 F.2d at 220.
[T]his purpose must be balanced . . . against the need to protect the public from violent
and dangerous individuals and providing sanctions for antisocial acts. One Juvenile
Male, 40 F.3d at 844 (quoting United States v. Alexander, 695 F.2d 398, 401 (9th Cir.
1982) (quoting United States v. E. K., 471 F. Supp. 924, 932 (D. Ore. 1979))). The
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government thus has an important interest in trying as adults those individuals under the
age of eighteen who meet the standards for adult status under the Federal Delinquency
Act. See 18 U.S.C. 5032 (listing the factors to be considered in deciding whether to
transfer juveniles to adult status). Because the Double Jeopardy Clause prohibits a
second prosecution for the same offense, United States v. Hawley, 93 F.3d 682, 687 (10th
Cir. 1996), the government will forever lose the opportunity to try a particular defendant
as an adult if it cannot immediately appeal the denial of a motion to transfer.
Accordingly, we conclude that under the Cohen collateral order doctrine, we have
jurisdiction to consider this appeal.

B. The Denial of the Motion to Transfer


On the merits, the government contends that the district court erred in applying 18
U.S.C. 5032 to deny its motion to transfer Leon D.M. to adult status. According to the
government, the evidence in the record establishes that juvenile adjudication is
unwarranted.
Section 5032 of Title 18 provides that proceedings may not be brought in federal
court against juveniles for offenses committed within the territorial jurisdiction of the
United States unless the Attorney General certifies to the appropriate district court that
there is a substantial federal interest in the case warranting the exercise of federal
jurisdiction and that one of the following factors exists: (1) the state juvenile court does
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not have or refuses to assume jurisdiction; (2) the state does not have available programs
and services adequate for the needs of juveniles; or (3) the alleged offense is a felony that
is a crime of violence, a violation of section 401 of the Controlled Substances Act (21
U.S.C. 841), a violation of certain sections of the Controlled Substances Import and
Export Act, 21 U.S.C. 951-971, or a violation of certain sections of title 18 of the
United States Code (18 U.S.C. 922(x), 924(b), (g), or (h)). Section 5032 further
provides that with respect to a juvenile fifteen years or older alleged to have committed an
act after his fifteenth birthday which constitutes a crime of violence or a violation of the
specified drug laws, criminal prosecution on the basis of the alleged act may be begun by
motion to transfer of the Attorney General in the appropriate district court of the United
States, if such court finds, after hearing, [that] such transfer would be in the interest of
justice. The statute then sets forth six factors that the court must consider:
Evidence of the following factors shall be considered, and
findings with regard to each factor shall be made in the
record, in assessing whether a transfer would be in the interest
of justice: [1] the age and social background of the juvenile;
[2] the nature of the alleged offense; [3] the extent and nature
of the juveniles prior delinquency record; [4] the juveniles
present intellectual development and psychological maturity;
[5] the nature of past treatment efforts and the juveniles
response to such efforts; [6] the availability of programs
designed to treat the juveniles behavioral problems.
18 U.S.C. 5032.
Under 5032, juvenile adjudication is presumed appropriate, and the government
bears the burden of establishing that a transfer to adult status is warranted. United States
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v. Nelson, 68 F.3d 583, 588 (2d Cir. 1995); Juvenile Male No. 1, 47 F.3d at 71; A.R., 38
F.3d at 706 (3d Cir. 1994). Additionally, although the district court must consider each of
the six factors set forth in the statute, it is not required to give equal weight to each factor
but may balance them as it deems appropriate. Juvenile Male No. 1, 47 F.3d at 71; see
also United States v. Doe, 871 F.2d 1248, 1254-55 (5th Cir. 1989) (A court is certainly
not required to weigh all statutory factors equally.). Also, the court is not required to
state whether each specific factor favors or disfavors transfer. United States v. Three
Male Juveniles, 49 F.3d 1058, 1061 (5th Cir. 1995). However, in making the transfer
decision, the court may assume the truth of the governments allegations regarding the
defendants commission of charged crime. See Doe, 871 F.2d at 1250 n.1.
Appellate review of 5032 transfer decisions is quite deferential. These decisions
are reviewed for an abuse of discretion, and, as the Second Circuit has noted, an appellant
bears a heavy burden in seeking to overturn them. See Juvenile Male No. 1, 47 F.3d at
71. A district court abuses its discretion in deciding whether to transfer a juvenile to adult
status when it fails to make the required factual findings or when its factual findings are
clearly erroneous. See id. However, the district courts decision should not be overturned
simply because an appellate court could have reached a different conclusion had it
considered the matter in the first instance. See id.
In this case, the government contends that the district court erred in denying its
motion to transfer because each of the six statutory factors indicates that juvenile
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adjudication is unwarranted. It begins with Leons age and social background, noting
that, when the alleged murder was committed, only three months remained until his
eighteenth birthday and that the record contains no evidence that Leon had an unstable
home life or suffered abuse or neglect. Thus, according to the government, the first
5032 factor supports treating Leon D.M. as an adult.
The government advances similar arguments with regard to the second and third
factors. It points to the heinousness of the alleged offense--the brutal murder of a young
child in the defendants care. With regard to Leons prior delinquency record, the
government cites testimony of the neighbors who observed Leon shaking Johnny and of
Johnnys father, who suspected Leon of abusing his son. It also notes testimony about
Leons marijuana use (including evidence that he tested positive for marijuana during the
pendency of this case) and his tribal court convictions for malicious mischief, disorderly
conduct, and a minor drug violation. The government maintains that this evidence
establishes a record of delinquency warranting a transfer to adult status.
As to the fourth factor, Leons intellectual development and psychological
maturity, the government cites the testimony of Ms. Chavez, Leons mother, and Leons
high school friend that he was mature, associated with older friends, and cared for Mr.
Chavezs children and his own son. The government also points to evidence that Leon
has some mechanical skills.

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Finally, the government challenges the district courts reasoning regarding the fifth
and sixth statutory factors, the nature of past treatment efforts and the availability of
programs designed to treat the juveniles behavioral problems. It observes that there is no
indication that Leon received any psychological treatment in the past and points to the
fact that no psychological evaluation was performed on Leon after the filing of the
murder charge. As a result, the government argues, the district court was unable to make
a reliable assessment of Leons behavioral problems or of the prospects of treating these
problems at any particular facility. The government also cites Leons marijuana use
during the pendency of this case as evidence of a lack of desire to be rehabilitated.
In our view, in advancing these arguments on appeal, the government seeks mainly
to re-argue its motion to transfer, asking us to re-weigh the six statutory factors such that
we reach a different result than did the district court. We have little doubt, as the
government forcefully contends, that some of those factors (particularly Leons age and
the heinousness of the alleged offense) provide support for treating him as an adult.
However the evidence in the record as to several of the other factors (particularly Leons
intellectual development and psychological maturity and the availability of treatment
programs) may be reasonably interpreted to support treating Leon as a juvenile.
As the arguments of the parties illustrate, many of the statutory factors leave
considerable room for interpretation. For example, the proper measure of intellectual
development and psychological maturity is open to debate, and neither 5032 nor the
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case law interpreting it specifies how these characteristics should be assessed in a


particular juvenile. The statute thus vests considerable discretion in the district court to
decide, based on the evidence presented to it, whether a particular behavior (e.g.,
dropping out of school and beginning a sexual relationship with an older woman, as Leon
did) reflects intellectual development and psychological maturity or a lack of these
characteristics. Here, the record establishes that the district court carefully considered
each of the statutory factors and made a difficult decision as to how to weigh them. Even
if the decision might not have been our own, in light of the deference we afford the
district court, it must stand.
We agree with the government that a psychological evaluation of Leon may have
been helpful in deciding its motion to transfer. However, as Leon notes, it is the
governments burden to prove that such a transfer is warranted. Here, the government did
not seek a psychological evaluation until after the conclusion of the evidentiary hearing
on its motion and the issuance of the district courts ruling. Moreover, although it may
well have been helpful in this case, 5032 does not require a psychological evaluation
before the district court may decide a transfer motion. Therefore, in light of the
governments delayed request, the district court did not err in deciding the governments
motion without the benefit of such an evaluation.
Accordingly, we conclude that the district court did not abuse its discretion in
denying the governments motion to transfer Leon D.M. to adult status.
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III. CONCLUSION
For the reasons set forth above, we conclude that we have jurisdiction to consider
the governments appeal of the district courts interlocutory order denying its motion to
transfer Leon D.M. to adult status. On the merits, we AFFIRM the district courts
decision denying the governments motion to transfer.

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